EFF Backs Court in Protecting Phone Call Privacy

Investigators Need a Warrant to Get Call Content

San Francisco - The Electronic Frontier Foundation (EFF) and
the Center for Democracy and Technology (CDT) filed an
amicus brief last Friday arguing that the government needs a
warrant to collect the content of a telephone call, even if
that content came from digits dialed on a phone keypad.

A federal magistrate judge in Texas asked EFF to file the
brief in response to requests from government investigators
to use a pen register or trap and trace device to collect
all information entered using the buttons on a telephone
(including, for example, bank account numbers or
prescription refill requests). A "pen/trap" order must meet
a lower standard of judicial review than a typical phone-
tapping warrant, because only telephone numbers dialed from
a certain phone -- not the content of the phone call itself
-- are normally collected.

In their brief, EFF and CDT ask the judge to continue
denying the orders and argue that the government's request
cannot be granted without violating federal wiretap law and
the Fourth Amendment.

"After the phone call has been connected, the pen/trap
device's job is over," said EFF Senior Staff Attorney Lee
Tien. "The numbers that you enter through the keypad to
fill a prescription or join a meeting are just like the
words or passcodes you say when there's no keypad option.
They cannot be retrieved without meeting stringent probable
cause requirements."

Until Magistrate Judge Smith asked for the brief, these
pen/trap requests were unknown to the public. The judge
previously asked EFF to respond to the government's secret
requests to track cell phone locations without a warrant
based on probable cause. Judge Smith and several other
magistrates around the country have now held that the
government cannot track cell phone locations unless it can
show probable cause and a judge finds good reason to believe
that criminal activity is afoot.

"Just as in the cell tracking cases, the government has
tried to hide its baseless arguments from public scrutiny,"
said EFF Staff Attorney Kevin Bankston. "We commend Judge
Smith for taking these issues seriously and allowing EFF to
offer a response to the government's contrived reasoning."

Online Message Board Fights for Anonymity in Oklahoma

EFF Defends Web Host and 'John Doe' Critic of School
Superintendent

Tulsa, Oklahoma - The Electronic Frontier Foundation (EFF)
last week filed to block an Oklahoma school superintendent's
attempt to unmask the identities of a local website's
operator and all registered users.

The superintendent has sued Internet users who criticized
him on the website's message board. In its motion to quash,
EFF argues that the plaintiff's overbroad subpoena seeking
to identify the site's operator and users violates First
Amendment protections for anonymous speech and association.

"Anonymity is critical to public discourse and is
fundamental to a free society, allowing speakers to offer
diverse views without fear of undue reprisal," said EFF
Staff Attorney Corynne McSherry. "There is now clear
judicial consensus that subpoenas to identify anonymous
speakers must be carefully scrutinized."

In recent months, EFF lawyers have represented or provided
amicus support in anonymity cases in California, Colorado,
and Delaware. In the latter case, Doe v. Cahill, EFF helped
successfully defend a Delaware blogger who had criticized a
member of the town council. The case resulted in the first
state supreme court decision confirming the First Amendment
right to remain anonymous until a litigant can demonstrate a
legitimate claim.

"Litigants must not be permitted to abuse the judicial
process to identity anonymous individuals who have simply
created a forum for critical comments or made statements a
plaintiff dislikes," said EFF Staff Attorney Matt Zimmerman.
"Speech critical of public officials -- made anonymously or
not -- enjoys an extremely high level of legal protection."

Another Endangered Gizmo: Neuros MPEG4 Recorder 2 and the
Analog Hole

Recently, Congress held yet another hearing about "plugging
the analog hole." Why is Hollywood so bent on making all
analog-to-digital technologies obey copyright holders'
commands? Because in an age of DRM on digital media, the
analog hole is often the last refuge for fair use and for
innovators trying to build new gadgets to take your rights
into the digital age.

Take the Neuros MPEG4 Recorder 2 (the "R2"), an endangered
gizmo that digitizes analog video output and records it to a
CF card or a memory stick in MPEG4 format. The video can
then be copied to your computer's hard drive, burned to DVD,
moved to your video iPod, or slotted right into your Sony
PSP. You can also output video to a display device from the
R2.

In turn, the R2 helps you make legitimate use of your media
and lawfully escape DRM restrictions. For example, you can:

* Free your recorded TV content: TiVo and other PVRs
restrict moving recorded video to other devices. The DMCA
limits removing these DRM locks, and, if the broadcast flag
proposal passes, these restrictions will get even worse.
Regardless, you can lawfully use the R2 to create a DRM-free
copy, recording straight from your TV or TiVo.

* Free your DVDs: DVD ripping software is widely
available, but using it to rip a film to your computer and
video iPod may violate the DMCA. The R2 gives you a legal
(albeit more cumbersome) alternative. Similarly, though
region-free DVD players are available, you can use the R2 to
help create a region-free copy of the movie itself.

The good folks at Neuros Technology were kind enough to give
us a device to test out. This clever gadget is light,
fitting neatly in your hand. Setup is simple, and you can
customize the recording resolution to suit your needs.

But you might not get to use the R2 or other innovations
that rely on the analog hole if Hollywood gets its way. In
fact, you shouldn't even expect that such devices will stay
on the market for use with DRM-free media (e.g., digitizing
your own home movies) -- after all, the manufacturers will
suffer great expense to install these bogus analog hole
plugs and will be forced to get permission from Hollywood
and regulators before innovating.

Bruce Perens on Software Patents: Told You So
We've warned you for a decade. Now the monster has finally
arrived: attacks against Open Source developers by patent
holders, big and small.
http://technocrat.net/d/2006/6/30/5032

Reproduction of this publication in electronic media is encouraged. Signed articles do not necessarily represent the views of EFF. To reproduce signed articles individually, please contact the authors for their express permission. Press releases and EFF announcements & articles may be reproduced individually at will.